Citation NR: 9732557
Decision Date: 09/24/97 Archive Date: 09/29/97
DOCKET NO. 94-20 217 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
P. A. Dowdell, Counsel
INTRODUCTION
The veteran served on active duty from June 1951 to July
1954.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a July 1993 rating
decision from the St. Petersburg, Florida, Regional Office
(RO), which denied service connection for an acquired
psychiatric disorder. The veteran perfected a timely appeal
to that decision.
In July 1996, the Board remanded this appeal to the RO to
contact the veteran in order to obtain information about all
post service treatment he had received for any acquired
psychiatric disorder, particularly during the period of years
immediately proximate to his separation from service; to
obtain all clinical records pertaining to the veteran’s
treatment by a psychologist in Lakeland, Florida, in July
1994; and to schedule the veteran for a Department of
Veterans Affairs (VA) psychiatric examination to determine
the nature and etiology of any ascertainable acquired
psychiatric disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he has an acquired
psychiatric disorder as a result of his active service. He
reports that he had a psychological disorder before entering
service and that it worsened as a result of his service in
the U. S. Navy.
The accredited representative has alleged that the February
1997 and March 1997 VA psychiatric examinations were
inadequate and has requested that this case be remanded in
order to afford the veteran an additional VA examination.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
entitlement to service connection for an acquired psychiatric
disorder is well-grounded.
FINDING OF FACT
There is no competent medical evidence linking the veteran’s
current acquired psychiatric disorder to service.
CONCLUSION OF LAW
The claim for entitlement to service connection for an
acquired psychiatric disorder is not well-grounded.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question that must be resolved with regard to a
claim is whether the veteran has met his initial obligation
of submitting evidence of a well-grounded claim. See
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78
(1990). A well-grounded claim is a plausible claim that is
meritorious on its own or capable of substantiation. See
Murphy, 1 Vet.App. at 81. An allegation that a disorder
should be service connected is not sufficient; the veteran
must submit evidence in support of a claim that would justify
a belief by a fair and impartial individual that the claim is
plausible. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2
Vet.App. 609, 611 (1992). The quality and quantity of the
evidence required to meet this statutory burden of necessity
will depend upon the issue presented by the claim. Grottveit
v. Brown, 5 Vet.App. 91, 92-93 (1993).
The three elements of a “well grounded” claim for service
connection are: (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the inservice disease or
injury and the current disability as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506
(1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1996). This means that there must be evidence of
disease or injury during service, a current disability, and a
link between the two. Further, the evidence must be
competent. That is, an injury during service may be verified
by medical or lay witness statements; however, the presence
of a current disability requires a medical diagnosis; and,
where an opinion is used to link the current disorder to a
cause during service or a service-connected disability, a
competent opinion of a medical professional is required. See
Caluza at 504; Reiber v. Brown, 7 Vet.App. 513 (1995).
It is significant to note that the accredited representative
has requested that this case be remanded in order to afford
the veteran an additional VA psychiatric examination. As
discussed below, the Board finds that the veteran’s claim for
service connection for an acquired psychiatric disorder is
not well-grounded and, therefore, there is no further duty to
assist the veteran with development of such claim.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a preexisting injury
or disease in line of duty. 38 U.S.C.A. § 1110.
Furthermore, service connection will be granted for a
psychosis, if it is manifested to a compensable degree within
one year of discharge from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations
also provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The service medical records, including the report of a
Medical Board Survey conducted in June 1954, reveal that the
veteran was hospitalized from January 1954 to March 1954,
while in service, for treatment of problems culminating in a
final diagnosis of chronic, moderate, emotional instability
reaction, manifested by poor service adjustment, difficulties
with figures in authority, aggressive behavior, emotional
lability, depression and suicidal threats. There was a
specific reference to the fact that the veteran had a long
history of emotional maladjustment and that the veteran
underwent electroshock therapy, while hospitalized, because
of the depressive component in his behavior. In April 1954,
the diagnosis was changed to schizoid personality. Under the
law, a grant of service connection and compensation for
personality disorder is expressly proscribed by 38 C.F.R.
§ 3.303(c), either on a direct basis or the basis of
aggravation of a pre-existing disorder.
The veteran’s post-service medical records do not document
complaints or findings of an acquired psychiatric disorder
until 1991. Specifically, there is no treatment for any
problems of a psychiatric nature that is documented between
1954 and 1991. A private treatment record dated in November
1991 included a diagnosis of anxiety.
According to the report of a VA psychiatric examination
performed in September 1994, it was the examiner’s conclusion
that the veteran had a diagnostic impression of major
depression superimposed on dysthymia (causing significant
impairment on his social and occupational functioning) and
schizoid personality disorder. The examiner stated that it
was difficult to clearly differentiate when the veteran’s
mood disorder started as he (the veteran) reported that he
had been depressed for over 10 years. The examiner also
stated that it was likely that the veteran’s mood disorder
had been a dysthymia and that the veteran had a major
depression on top of this. A summary of private
hospitalization dated in July 1996 included a diagnosis of a
history of anxiety.
Pursuant to the Board’s July 1996 Remand decision, the
veteran was administered a VA psychiatric examination in
February 1997. According to the report of a VA psychiatric
examination, the examiner diagnosed simple phobia.
Significantly, after reviewing the veteran’s medical history
and examining his mental status, it was the examiner’s
opinion that the current manifestation was not directly
connected to any situational or reactive depression that the
veteran may have experienced in the military. The examiner
also stated that the veteran had an anxiety disorder, which
was predominantly phobic in nature, and that, in all
probability, this was not directly attributable to military
service.
In another report of a VA psychiatric examination dated in
March 1997, the examiner diagnosed, in pertinent part, a
situational type specific phobia, a history of alcohol abuse
current in remission, and a personality disorder, not
otherwise specified, and noted that the personality disorder
was felt to have had its onset prior to service and was not
felt to be related at all to service. The examiner stated
that the veteran had a long history of depressive disorders
and depression, which appeared to have abated since his last
psychiatric compensation and pension examination,
particularly since becoming a bit more financially stable.
The examiner also stated that the veteran did not meet the
criteria for depressive or dysthymic disorder at that time.
Furthermore, the examiner stated that the specific phobia
symptoms were not felt to be related to the veteran’s
military service and it was not felt to have had its onset
during his military service. Moreover, the examiner stated:
He did have [a] depressive disorder
during service based on history, but this
is in remission at this time and he again
does not meet the criteria for that. He
appears to be functioning much better now
since his last examination, is much more
active, and has some meaningful
relationships with others and interest in
outside activities. (Italics added.)
Where the determinative issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical
causation, or substantiating a current diagnosis, cannot
constitute evidence to render a claim well grounded under
38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted
to support a claim, the claim cannot be well grounded. Id.
While the veteran is competent to describe psychiatric
symptoms, a diagnosis and an analysis of the etiology
regarding such complaints requires competent medical evidence
and cannot be evidenced by the veteran’s lay testimony. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992).
In this case, no competent medical professional has furnished
evidence supportive of the veteran’s allegations that an
acquired psychiatric disorder has any relationship to his
period of active service. It is particularly significant to
also note that the claimed acquired psychiatric disorder was
not noted during service, or until many years following
service; hence the question of whether any disability was
“aggravated” by service would not be a controlling
consideration.
Consequently, in the absence of any competent evidence
linking a current disability to service, the claim is not
well-grounded. Caluza. Accordingly, there is no duty to
assist the veteran in any further development of his claim.
Rabideau v. Derwinski, 2 Vet.App. 141 (1992), Murphy v.
Derwinski, 1 Vet.App. 78 (1990). Further, the Board views
the information provided in the statement of the case,
supplemental statement of the case, and other correspondence
from the RO, sufficient to inform the veteran of the elements
necessary to complete his application for service connection
for an acquired psychiatric disorder. While it is not clear
whether the RO obtained all pertinent records associated with
the decision of the Social Security Administration in March
1995 to grant disability benefits, the veteran was afforded
an opportunity to report all psychiatric treatment since
service; and he has not put the VA on notice of the existence
of any specific, particular piece of evidence that, if
obtained, might make the claim well-grounded. Therefore, the
Board finds that a remand to obtain any additional evidence,
including Social Security records, under Robinette v. Brown,
8 Vet.App. 69 (1995), is not warranted.
Although the RO did not specifically state that it denied the
veteran’s claim on the basis that it was not well grounded,
the Board concludes that this was not prejudicial to the
veteran. See Edenfield v. Brown, 8 Vet.App 384 (1995) (en
banc) (when the Board decision disallowed a claim on the
merits where the Court finds the claim to be not well
grounded, the appropriate remedy is to affirm, rather than
vacate, the Board’s decision, on the basis of nonprejudicial
error). The Board, therefore, concludes that denying the
appeal on this issue because the claim is not well grounded
is not prejudicial to the veteran. See Bernard v. Brown, 4
Vet.App. 384 (1993).
ORDER
The claim for entitlement to service connection for an
acquired psychiatric disorder is denied.
L. JENNIFER LANE
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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